Annex 1 of the OSCE Human Dimension Implementing Meeting (1998)

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OSCE Human Dimension Implementation Meeting

October 1998

Background Paper 1

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ANNEX I: ESSENTIAL CHARACTERISTICS OF A CLASSICAL OMBUDSMAN

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A. Independence

a. The Ombudsman’s Office is created in the Constitution or a law of the jurisdiction to establish its permanence.

Ombudsmen established in a Constitution are more likely to be permanent. An Ombudsman can also be established solely in law. Some provisions require a super majority of two-thirds or greater of members of the legislative body to enact and amend. The more difficult it is to change the legal basis for the Ombudsman’s office, the more likely the office will be permanently established. The Ombudsman is free to criticize without fear that the office will be abolished or unnecessarily restricted.

b. The Ombudsman acts as an officer of a legislative body or on behalf of the legislative body, and is independent of the organizations the Ombudsman reviews.

The Ombudsman is part of the legislative body to achieve independence from the agencies the Ombudsman reviews. Ombudsmen are independent so they may be impartial. Their findings and decisions are based on examination and analysis of the facts and law. The Ombudsman is also free of functional control by the legislative body. Legislative control is exercised instead through appointment, re-appointment and removal. Independence creates credibility for the office among the people, particularly those who complain.

c. The Ombudsman is appointed or confirmed preferably by a super majority of a legislative body through a process designed to prevent political appointments.

Appointment or confirmation by a super majority ensures that the candidate is one who has wide respect among different political parties and even parties that oppose one another or the government.

The best Ombudsman appointment processes are designed to yield one candidate, broadly approved by political parties representing a super majority of the legislative body. The successful result is appointment of a widely respected individual seen by diverse political groups as fair and impartial.

d. The Ombudsman has a fixed, long term of office and may be reappointed.

A long term of office at least a year more than the term of the legislative body members with the longer term removes the Ombudsman from political winds of the moment.

e. Removal of the Ombudsman is for cause and by a super majority of the parliament.

Ombudsmen are subject to removal for specified causes to guarantee they will not be removed for political reasons or because investigations have offended those in political power in the legislative body. Requiring the same super majority to remove as appoint ensures that the reasons for removal are as widely appreciated and valid as those for appointment.

f. The Ombudsman has a high, fixed salary.

Ombudsmen investigate and make recommendations to the highest officials of the government. They are paid at a level commensurate with that responsibility. Pay is often equated with judges, justices of supreme courts, or heads of ministries or government agencies.

g. The office has a budget funded at a level sufficient to carry out the purposes established in law and spends and accounts for its funds directly to the legislative body.

An inadequately funded office will not be able to perform the functions required by law, and thus will lack true independence. The Ombudsman spends budgeted funds independent of any approving authority and accounts for its expenses directly to the legislative body.

h. The Ombudsman has the sole power to appoint and remove staff.

The Ombudsman has the power to delegate responsibilities to staff. Staff often perform work that is sensitive, delicate or confidential. The Ombudsman must have confidence in them and the sole power to appoint and remove them to ensure that staff will have the Ombudsman’s full confidence.

i. Someone is always capable of exercising all the Ombudsman’s powers.

An office without someone to exercise the Ombudsman’s powers is paralysed. Ombudsmen name deputies or acting ombudsmen who can always exercise the powers of the office while the Ombudsman is out of the country, ill, unable to serve or when the office is vacant.

j. The Ombudsman is provided immunity from liability and criminal prosecution for acts performed under the law.

The Ombudsman is immune from liability for acts performed under the law. Immunity allows the Ombudsman to focus resources on receiving and investigating complaints rather than defending suits.

The Ombudsman may not be prosecuted criminally for acts performed under the law.

k. Ombudsman actions may not be reviewed in court except to determine the Ombudsman’s jurisdiction.

Since no one receives anything by right from the Ombudsman and the Ombudsman cannot issue a binding order, judicial review serves mainly to harass and delay the Ombudsman. However, when jurisdiction is in question, judicial review is appropriate.

l. The Ombudsman may appeal to courts to enforce the powers granted by the act.

Ombudsman acts give the Ombudsman certain powers, such as the right to summon or subpoena testimony or documents, that on occasion may not be honoured by agencies under the Ombudsman’s jurisdiction. Litigation is a necessary option for the Ombudsman to enforce those powers. Some acts also give the Ombudsman the authority to appeal to a Constitutional Court or the Supreme Court to consider cases growing from complaints.